Enforcement of Furnace Efficiency Standards Delayed… Again

Posted by on May 21, 2013 in Architectural Controls, CAI, Legal Decisions, Legislation, Safety

By Ronald L. Perl, Esq.

The high efficiency furnace rules case has taken a new procedural turn. On May 1, 2013, a panel of the U.S. Court of Appeals for the District of Columbia Circuit issued an emergency order staying implementation of the new rules requiring non-weatherized gas furnaces installed in the northern regions of the country to be 90% efficient.  That order did not resolve the case but rather simply put on hold the application of the proposed regulations until the court actually rules on the propriety of a settlement agreement entered by the parties. The effect of this ruling is that the new standards did not take effect on May 1, 2013 as initially proposed, but no decision has yet been made whether they will take effect on a future date.

For those who have been following the issue, in 2011, the U.S. Department of Energy (DOE) promulgated new energy conservation standards for air conditioners and heating units. A portion of the new standards applies to new installations of non-weatherized gas furnaces on or after May 1, 2013 and increases the efficiency requirements of those units from 78% to 90%. A lawsuit challenging the furnace standards on both substantive and procedural grounds was filed by the American Public Gas Association. The lawsuit was settled last year, and for several months, the settlement has been awaiting the approval of the appeals court. The DOE announced in April that it would not begin enforcing the new rules before the court rules on the settlement agreement. The recent court ruling neither approved nor disapproved the settlement but stayed implementation of the new rules, thus officially preventing the DOE from enforcing the rules for the time being. It also set some procedural requirements for the eventual hearing on the merits.

The proposed standards are significant to community associations because the new furnaces vent much differently than existing ones and require modifications to units and common elements, which may be difficult or impossible because of space limitations or building code issues.

You can view the District of Columbia Circuit’s order here.

For more information on this or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw.

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Enforcement of Furnace Efficiency Standards Delayed

Posted by on Apr 25, 2013 in Architectural Controls, CAI, Legal Decisions, Legislation, Safety

By Ronald L. Perl, Esq.

The Department of Energy (DOE) has announced that it will not enforce the rules requiring more efficient residential natural gas furnaces that were to go into effect May 1, 2013, pending the outcome of the lawsuit challenging those rules and an anticipated settlement requiring re-evaluation of the standards to be applied. The new rules would have required at least 90% efficiency for non-weatherized gas furnaces installed in New Jersey and other northern states after April 30. The proposed standards are significant to community associations because the new furnaces vent much differently than existing ones and require modifications to units and common elements, which may be difficult or impossible because of space limitations or building code issues.

The lawsuit has resulted in a settlement that would vacate the rules, but that settlement requires the approval of a Federal Appeals Court, which has not yet scheduled a hearing on the issue. Although the rules remain intact, the DOE will not enforce them. According to the DOE’s statement, “In an exercise of its enforcement discretion, DOE will, during the pendency of the litigation, act in a manner consistent with the terms of the settlement agreement with regard to the enforcement of the standards.”

Therefore homeowners may continue to install residential natural gas furnaces that do not meet the 90% efficiency rating, pending resolution of the case.

You can view the Enforcement Policy Statement here.

For more information on this or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw.

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New Development Regarding Furnace Efficiency Standards

Posted by on Apr 5, 2013 in Architectural Controls, Legal Decisions, Safety

By Ronald L. Perl, Esq.

In a previous post, we discussed a settlement of a lawsuit challenging the U.S. Department of Energy’s new furnace efficiency standards. There is an agreement to scrap the standards, which would require new gas furnaces installed in our region to increase efficiency from 78% to 90%. However, the settlement requires the approval of a Federal Appeals Court, which has not scheduled a hearing on the issue. The new standards are significant to community associations because the new furnaces vent much differently than existing ones and require modifications to units and common elements, which may be difficult or impossible because of space limitations or building code issues. The new standard will go into effect on May 1, 2013 unless the Court acts before that time.

In a recent development, one of the parties to the case, the Air-Conditioning, Heating and Refrigeration Institute (“AHRI”) has filed a motion to stay the implementation of the standards until after the Court rules on the settlement. If the Court approves the settlement, no further stay will be necessary. However if the Court does not approve the settlement, AHRI wants the standards to be delayed for at least six months after the Court’s ruling. There is no real opposition to the stay; the DOE’s reply to the motion just wants the stay limited to the portion of the rule that is the subject of the litigation. The need for the stay is obvious, since it is likely that the settlement vacating the rule will ultimately be approved. Of course, the Court can solve the problem by simply acting quickly to approve the underlying settlement.  Stay tuned — we will keep you updated when there are further developments.

For more information on this or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw.

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New Efficiency Standards for Gas Furnaces Still in the Works

Posted by on Feb 18, 2013 in Architectural Controls, Legal Decisions, Safety

By Ronald L. Perl, Esq.

On January 14th, the American Public Gas Association (“APGA”) and US Department of Energy (“DOE”) submitted a joint motion to the D.C. Circuit Court of Appeals to vacate new regional efficiency standards for gas furnaces that were scheduled to go into effect on May 1, 2013. These new standards, which were originally published at 76 Fed. Reg. 37408 (June 27, 2011), had created concerns for community associations because of venting requirements that implicated general common elements. Specifically, the now vacated standardswould have required new gas furnaces installed in our region to increase efficiency from 78% to 90%. According to the APGA, who was the plaintiff in this action, 90% efficient furnaces require expensive venting modifications, including side venting. This is significant to community associations because side venting may be difficult or impossible because of space limitations or building code issues. Associations will therefore face requests to install new venting through common element walls or other space. The APGA challenged the standards on both substantive and procedural grounds. This settlement, if approved by the court, will apparently cause the DOE to go back to the drawing board on these standards and reopen the rulemaking process. The joint motion can be found here.

For more information on this or any other issue concerning your community association, please contact one of our Community Associations attorneys. For breaking news or updates on new blog posts, follow us on Twitter at: @njcondolaw.

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Bah Humbug!: Restricting the Display of Holiday Decorations

Posted by on Dec 17, 2012 in Alternative Dispute Resolution, Architectural Controls

By Jonathan H. Katz, Esq.

“Every idiot who goes about with Merry Christmas on his lips should be boiled with his own pudding and buried with a stake of holly through his heart.”

Ebenezer Scrooge ~ from Charles Dickens’ “A Christmas Carol”

With the holiday season in full swing, many community association boards are in the unenviable position of having to balance enforcement of their rules and regulations related to holiday decorations while trying not to come off looking like Ebenezer Scrooge (pre-ghosts of Christmas past, present and future, of course). And while an association of single-family homes may be less concerned about restrictions than a high-rise condominium or townhouse association, here are some obvious – but often overlooked – rules to think about when it comes to regulating holiday decorations on both common elements and homeowner property:

  • Be Consistent and Reasonable – Unless required by your governing documents or there is a compelling reason to do so, do not totally prohibit residents from decorating the exteriors of their homes for the holidays. Associations should adopt uniform rules and communicate these rules to the residents so everyone is on the same page as to what they can and cannot display (as well as where it can be displayed). However, if your association does have a blanket ban holiday decorations, it must be consistent and ban all decorations and displays.
  • Set Reasonable Restrictions – It is reasonable and appropriate for a board to enact regulations with respect to when decorations may be displayed and, more importantly, when they must be removed. It is also reasonable to regulate the time of day that lights or other features may be used so as not to create an unreasonable nuisance for neighbors or additional safety issues. Avoid, if at all possible, venturing into unchartered territory of restricting religious displays. Also, be mindful that not everyone celebrates the same holidays (for example, Diwali – the Hindu “Festival of Lights” – occurs in late October/early November each year).
  • Be Mindful of Decorations on Common Elements – Again, while it is not advisable to prohibit homeowners from decorating their own homes, it is perfectly acceptable to ban residents from decorating general common elements. It is also advisable to limit homeowners from affixing decorations to limited common elements if the association is responsible for their maintenance. And again, associations that do choose to decorate common elements, such as clubhouses, entrance ways or lobbies, should avoid religious displays and be mindful to either keep such decorations general – lights and wreaths, for example – or to take extra care to give equal treatment to all religious affiliations.
  • Do Not Argue Over Aesthetics – Not everyone has the same taste in decorating, but if the board or architectural review committee are arguing over what is tasteful and what is not, it may be time to take a closer look at your rules regarding decorations.

Overall, it is important to make your holiday decorating rules reasonable and even-handed. Concentrate on what is most important: location, time and place, size and safety, but not content or aesthetic appeal. And just remember, as long as they are not dangerous, the ten-foot tall inflatable Santa, Rudolph or Frosty the Snowman will not hurt anyone (and will not be on display forever).

For more information on this or any other issue concerning your community association, please contact one of our Community Associations attorneys.

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Rethinking Architectural Controls

Posted by on Apr 3, 2012 in Alternative Dispute Resolution, Architectural Controls

By Ronald L. Perl, Esq.

A reporter recently contacted me for an article involving architectural controls. It caused me to think about the need for balance in the enforcement of architectural covenants. To be sure, architectural covenants and controls play an important role in common interest communities. Exterior changes can have a negative impact on property values, property maintenance and, at times, the ability of other owners to use and enjoy the common property. In other instances, minor exterior alterations or installations can have little impact on the other owners or the association as a whole. Associations need to exercise reason and good judgment in determining when architectural guidelines can be relaxed to allow homeowners to make harmless changes.

More than 30 years ago, before I practiced community association law, I was a board member in a homeowners’ association. I have served on other condominium and HOA boards since. In the “old days” it seemed important that we have uniform storm doors on every front door. It had to been the same door with a cross buck solid bottom and glass upper half. Over the past three decades, some associations have softened their attitude on screen doors, concentrating on the strength and quality of the door and perhaps limiting color choices rather than prescribing only one door. Strength and quality are relevant because inexpensive doors tend to deteriorate in a short time, causing the home’s exterior to look run down. Is it so important that all doors be identical in every respect?

When exterior change and security issues meet, it is critical to consider the purposes of the particular restriction measured against the reason for the requested alteration. In a California case of significance, a condominium association was held liable for a woman’s injuries suffered in a mugging near her unit, in an area that was dark because the association refused to allow her to install a security light and made her disconnect the one she installed without permission. Currently, a homeowners association is considering whether to require a homeowner to remove a security gate that has been placed over their unit’s sliding glass door. It seems that there have been a rash of “smash and grab” incidents in this neighborhood. The door in question faces the woods. Isn’t this an appropriate time to ask “what harm does the security gate do to the building or other occupants or owners, either individually or collectively?” Maybe the bolting of the door to the building has penetrated a common element. Maybe it will have to be temporarily removed for residing or painting. There are ways to handle this short of prohibiting the gate (a license agreement, for example, which requires the owner to accommodate the repair or painting issue).

The point is this: rule making and rule enforcement are important functions of a community association. In performing those obligations, association boards should keep their eye on the ball – which is the protection of property and the health, safety, and welfare of the residents.

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